A Cautionary Tale: How DPO Conflicts of Interest Can Lead to Regulatory Penalties

In a landmark decision, the Belgian Data Protection Authority (DPA) ruled against a financial institution and fined it € 75 000 for failing to ensure the independence of its Data Protection Officer (DPO). The case revolved around the DPO's simultaneous role as the head of three critical departments—Operational Risk Management (ORM), Information Risk Management (IRM), and the Special Investigation Unit (SIU). This dual responsibility created a conflict of interest, as the DPO was both overseeing data protection compliance and actively involved in decision-making regarding data processing.

The Belgian DPA’s decision is available in Dutch here: https://www.autoriteprotectiondonnees.be/publications/decision-quant-au-fond-n-141-2021.pdf? ?

This issue is highly relevant to Botswana, as Section 71(5) of the Botswana Data Protection Act, 2024, mirrors the GDPR’s Article 38(6). Both instruments state that while a DPO may perform other functions within an organization, these additional roles must not compromise their independence or create a conflict of interest. The ruling reinforced that a DPO should have a distinct, oversight role without being involved in defining or managing data processing decisions.

Key Takeaways and Best Practices

1. DPOs Must Be Independent – A DPO cannot hold a position that involves determining how personal data is processed. Their role should focus on advisory, monitoring, and compliance, rather than operational decision-making.
2. Avoid Conflicts of Interest – Organizations must ensure that the DPO does not have other responsibilities that could compromise their ability to act impartially. If a DPO holds multiple roles, there should be clear safeguards to prevent conflicts.
3. Direct Reporting to Senior Management – The DPO must report to the highest level of management to ensure their recommendations are taken seriously and implemented effectively.
4. Regulators Are Enforcing Compliance – The €75,000 fine underscores that regulators around the world are taking DPO independence seriously. Organizations must proactively review their governance structures to avoid penalties.
5. Compliance Requires Structural Changes – Simply appointing a DPO is not enough. Companies must design their governance in a way that supports the DPO’s independence, including providing adequate resources and access to decision-making bodies.

Conclusion

This case is a wake-up call for organizations to assess their data protection structures and ensure their DPOs are truly independent. As Botswana fully implements its Data Protection Act, 2024, businesses, government institutions, and organizations must proactively align with global best practices to avoid similar pitfalls. Ensuring a well-structured, conflict-free DPO role is not just about compliance—it’s about building trust and accountability in data protection.

Article by Princess Musa Motlogelwa

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Disclaimer: This article is for information purposes only and should not be taken as legal advice.